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Writ Petition in High Court against SIC Order in Second Appeal!


amsindelhi

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amsindelhi

Hi All I am facing a false & frivolous criminal case against which I filed a Quash Petition in Chandigarh High Court. In response to my petition, the state filed an Affidavit in HC stating that my petition is not maintainable and they have incriminating evidence against me ON RECORD based on which the case is made. I then filed an RTI Application with the police asking for the "incriminating evidence AVAILABLE ON RECORD" but the SPIO (who is also the custodian of information & has signed the false affidavit) replied saying no such information is available on record. I then filed the Second Appeal & in response the SPIO transferred my RTI Application to the District Court where the case is being heard (five months after the RTI Application only when I filed the Second Appeal). In response to my second appeal, the State Information Commission mentioned that the SPIO cannot provide information NOT available on record and hence the second appeal is disposed off devoid of any merits.

Will a writ petition in HC  against the SIC Order asking for penalty against the SPIO under RTI Act for failure to provide information with malafide intention.....likely to succeed in this matter?

Any guidance would be appreciated!
 

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Prasad GLN

Not likely. 

When there is no record in material form in the custody of the concerned SPIO, he can not create the information. 

If some one says that there is incriminating evidence, at least they should have provided such information in sealed cover or proceeded further on that information.

If your application is directed to that authority who filed the affidavit, this SIC decision that there is no such evidence is itself a strong proof that affidavit is wrong.

Signing false affidavit is an independent offense and not connected with RTI.

Contact a local advocate for suitable remedy for false affidavit.

 

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amsindelhi

Dear Mr Prasad

Thanks for your urgent response to my query. I have already complained to the Chief Secretary of the State and am planning to file for perjury for the false affidavit.

However, my understanding is that under the RTI Act,

1. The SPIO has failed to provide information sought (he has admitted that the sought information is available on record in a sworn affidavit - there are 12 points of information including evidence)

2, The SPIO has wrongfully transferred the RTI Application to another Public Authority (trial court) and the trial court has replied that the  sought information does not pertain to their record

3. The SPIO has not made any attempt to obtain the sought information from the custodian of record 

The SPIO has not taken the plea of "creating information" but has mentioned that the sought information has been sent to the trial court and has also transferred the RTI Application to trial court. The SPIO plea has been proved wrong by the reply from Trial Court. 

Can this argument make a case for filing a writ petition against the SIC Order on the grounds of "refusal to provide sought information available on record with malafide intention" and levy of penalty under RTI Act?

Thanks in advance for your guidance.

Regards

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Prasad GLN

The simple advise to every member is "FOCUS" on MAIN issue and ignore minor deviations and violations.  IF you hunt for small violations, your attention is diverted to trivial issues that are in no way helpful for the Main issue.

At the cost of repetition RTI decisions can be challenged and remedy is only under RTI Act.

As far as I could understand, the issue is SPIO with his other designation has filed a false affidaviat.

When information is solicited he has denied information stating that he is not having any such record, here started the RTI game.  First appeal and second appeal also same drama "record not available".

You can not bring a court affidavit under RTI and can not seek praying against PIO.

The filing of wrong affidavit is a separate issue.  TO prove that a wrong affidavit is filed, their admissions at four places is more than enough.

There can be no involvement under RTI.  RTI helps in confirming that even without having such record, SPIO fabricated a false record and filed affidavit with incorrect information , though there is no such record.

The affidavit is incorrect.   Not denying information stating there is no such record.   Transfer etc are silly issues.  At appropriate it may help to establish malafides of SPIO that is all.

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amsindelhi

Thanks for your guidance Mr Prasad. I will seek relief in this matter through the perjury route.

Warm Regards

 

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Prasad GLN

Always explore alternate ways that are fast and inexpensive like Human Rights Commission as some Judges in HC may not understand the real issue involved and feels that petty cases are burdening them and impose costs.

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